Archive

We have today published the first of a series of video blogs on the Fortuna Land Case (http://www NULL.marbella-lawyers NULL.com/wordpress/legal-case-fortuna-land) which we wish to alternate with written information as the case develops. We think it’s a good idea so that anyone who did not have the opportunity to be in the conference we held in Ireland could see what we look like.

Our aim with this flow of information is to help keep clients updated, the case alive and also give anyone the opportunity to comment on each appearance or publication in respect of the updates.

It seems that the Operacion Fuentespino, the name given by the National Police in Spain to the Fortuna Land case (http://www NULL.marbella-lawyers NULL.com/wordpress/legal-case-fortuna-land), is gathering pace as a significant (although small in comparison with the real figures) number of people who invested in the scheme have decided to group to press charges against the perpetrators.

When approached for advice in respect of how to go about filing I cannot stress enough the importance of coming up with a solid, well-presented and well-argued suit so that there are few options for the defendants’ legal team to stall the proceedings in favour of a more lenient and slow civil case.

This means that a “denuncia” per se, whilst it is a way to inform the authorities that an offence has been commited, does not make the claimant part of the procedure and therefore he will not be entitled to argue the case, counter-argue, propose measures in respect of the suspects (even their freedom), their assets or those of third parties who have somehow taken ownership (for example, Finca Cazadores, now in the hands of a company and an individual), appeal Court decisions, request information from bank accounts in Spain or abroad, propose interrogations or testimony depositions etc.

Whether we like it or not, the above case by-and-large affects foreigners (perpetrators and victims), originated in a little known investment concept in Spain, the land banking business (except for property developers) and would be widely considered as a white-collar crime in most jurisdictions. This is why it is viewed in Spain as anecdotical and would not make it to the headlines, unless of course victims grouped and acted promptly because a slack response is, in my opinion, no response at all.

Spanish Police have uncovered (http://www NULL.elpais NULL.com/articulo/economia/Timo/gigante/Costa/Sol/elpepueco/20081205elpepueco_2/Tes) what appears to be the latest Costa del Sol scam, this time connected to the old land banking investment practice. And I say that it (only) appears to be a scam because Fortuna Land and their associate companies could well have the opportunity to defend themselves successfully if, on the basis of the contracts signed, no promise or guarantee of a certain or fixed return was made.

And if the above is confirmed any skilled lawyer could turn, on behalf of the perpetrators, a scam into a civil dispute, well away from criminal courts. In my opinion this whole fiasco could be construed as a scam and therefore prosecuted via Criminal Courts if the following requisites can be proved, beyond reasonable doubt, by the Prosecutor and victims:

That the developer promised the reclassification of the land from rural to a classification necessary for the commercial purpose it was destined for.

That the developer new that the reclassification was either very difficult to achieve or simply impossible, and he did not even attempt to change it.

That the developer provided false or manipulated valuations (this action per se is enough to prosecute for fraud).

My gut feeling tells me that this is all fraudulent (their website is worrying) but as a lawyer I would loathe to be predisposed to a certain opinion just by reading the press and internet comments (http://www NULL.fool NULL.co NULL.uk/news/investing/company-comment/2006/09/08/spam-scams-to-avoid NULL.aspx) and not looking carefully at the documents signed by the parties, the advertising used for selling and the sales “pitch” used by their telemarketers, which is key to decide on launching criminal or civil proceedings.

What I can guarantee, with 100% certainty (and my professional reputation goes with it!) is that cold callers offering a debt recovery service (http://www NULL.marbella-lawyers NULL.com/forums/showthread NULL.php?t=77) are real conmen trying to seize this opportunity to extract an extra amount of cash from the already vulnerable investors. Whether they are of African origin (Nigerian 419 scam) or former timeshare scammers, putting the phone down after a brief conversation indicating you are not interest should suffice.

I have so far only seen a copy of the deeds of sale of shares of the company owning the land signed at the Notary in Fuengirola, which is insufficient to decide on what actions to take, so any input (documents, advertising material, copy of valuations etc) is welcome to file a case against the developer, in the person of the directors/administrators of the company(ies) involved.